Untitled Texas Attorney General Opinion ( 1970 )

February 26, 1970
Honorable Tom Curtis Opinion No. H-586
District Attorney
Potter County Courthouse Rer Whether, under the stated
Amarillo, Texas 79101 facts, the mayor of Amarillo
resigned his office upon
becoming a candidate for
county judge; and related
Dear Mr. Curtis: questions.
In your recent letter to this office you state
that on February 2, 1970, Mr. J. Ernest Stroud, the incumbent
mayor of the City of Amarillo , officially filed and announced
as a candidate for the office of county judge of Randall
County, and, at that time the unexpired term of his office
as mayor exceeded one year. You request our opinion upon
the following questions:
"1. Did the incumbent mayor becoming a
candidate for Randall County Judge:constitute
an automatic resignation'offhis office as
mayor, under the provisions of Article XI,
Section 11 of the T.*xasConstitution7
"2. If such did constitute an automatic
resignation, on what date did that rerlgnation
occur?
"3. In the event that your opinion as
to question No. 1 is that no automatic resfgna-
tion occurred, does the mayor’s action in be-
coming a candidate for Randall County Judge
otherwise affect his tenure in office pursuant
to any other constitutional provisiona or
statutes of the State of Texas?
"4" In the event your opinion as to
question No. 1 is that an automatic resigna-
tion did occur, and the City Charter provides
for the filling of the vacancy thereby created
by appointment by vote of the city commissioners,
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Hon. Tom Curtis, page 2 (M-586,
does the procedure set forth in ,ihethird para-
graph of Article XI, Section 11 c:rltrolthe
manner in which the vacancy must tt- filled
notwithstanding any provisions of the City
Charter to the contrary?"
The authority and responsibility of this office to
render official opinions is restricted by he provisions of
Article 4399, Vernon's Civil Statutes. That article does not
confer upon this office any authority to advise cities',towns
or villages upon questions of municipal law. It has further
been the long standing policy of this office to advise those
officiala, boards and agencies mentioned in Article 4399
only insofar as the facts and questions submitted relate to
their official duties, authority or reaponsibilities.~ Since
the questions you have submitted relate to municipal law, we
are authorized to advire you only in the event the answers
will in some way involve your official duties, authority or
responsibilities.
Under the provisions of Article 6253, Vernon's Civil
Statutes, district attorneys, inter alia, have authority to
institute quo warrant0 proceedings to determine a person's
right to occupy certain public offices, including that of
mayor of a city, town or village. Therefore, since the answers
to your questions relate to your authority under Article
6253, we will proceed to consider rue.
Section 11 of Article XI of the Constitut? -. .;
Texas provides as follows:
"Sec. 11. A Home Rule City may provide by
charter or charter amendment, and a city, town
or village operating under the general law6 may
provide by nujority vote of the qualified voters
voting at an election called for that purpome,
for a longer term of office than two (2) years
for its officorr, either elective or appointive,
or both, but not to exceed four (4) years1 pro-
vided, however, that tenure under Civil Service
lhall not be affectad hereby.
*Provided, howavar, if any of ruch officers,
lleotivo, or apgointive, mhall announce their
candidacy, or ahall in fact become a candidate,
in any general, rpecial or primary election, for
any office of profit or trurt under the laws of
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Hon. Tom Curtis, page 3(~-5SSj
this State or the United States other than the
office then held, at any time wh:.? the unexpired
term of the office then held shall exceed one
(1) year, such announcement or euci candidacy
shall constitute an automatic resignation of the
office then held, and the vacancy thereby created
shall be filled pursuant to law in t?e same man-
ner as other vacancies for such office are filled.
"A municipality SO providing a term exceed-
ing two (2) years but not exceeding four (4)
years for any of its non-civil service officers
must elect all of the members of its governing
body by majority vote of the qualified voters in
such municipality, and any vacancy or vacancies
occurring on such governing body shall not be
filled by appointment but must be filled by
majority vote of the qualified voters at a
special election called for such purpose with-
in one hundred and twenty (120) days after such
vacancy or vacancies occur."
Prior to the adoption of Section 11 of Article XI
at the general election in 1958, the term of office for all
city officers was limited by Section 30 of Article XVI of the
Constitution of Texas to a maximum of two Learn. However,
under the plain and unambiguous language of Section 11 of
Article XI no automatic :xteneion of the terms of offir: of
city officers is effectuated. To the contrary, th: ``-h~rit:l
to extend terms of city officials under this pravi.,ionis
optional and can only be exercised by a "majority vote of tr.e
qualified voters voting at an election called for that pur-
pose.*
At the present time the City of Amarillo has not
exercised the option to extend the terms of its officers
pursuant to Section 11 of Article Xl, and, Article V, Section
2, of the city charter currently provides for two-year terms
for the offices of mayor and city commissioner.
It is beyond question that the second paragraph of
Section 11 of Article XI applies to city officers whose term
of office is longer than two years, and, when such an officer
becomes a candidate for any other office of profit or trust
under the laws of this State or the United States he auto-
matically resigns the city office then held. Whether this
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Hon. Tom Curtis, page 4 (M-586,
same provision applies with equal for.‘e and effect to city
officers whose terms of office do not vceed two years is a
question which lends itself to persuasive arguments upon both
sides. We have concluded that the seconL paragraph of Section
11 of Article XI has no application other than to city of-
ficers whose terms have been extended beyond two years pur-
suant to the other provisions of such eect',on.
Rules of construction for statutes apply also to
the construction of constitutional provisions. 12 Tex,Jur.Zd
362, Const.Law 914. In determining the extent of the ap-
plication of the second paragraph of Section 11 of Article x1
we must consider Section 11 of Article XI in its entirety and
consider each part of the provision in relation to every
other part in order to produce a harmonious whole which com-
ports with its overall purpose. 53 Tex.Jur.Zd 229-232,
Statutes 9160. The primary subject matter and purpose of
Section 11 of Article XI is the extension of the terms of
office of municipal officers beyond the two year limitation
imposed by Section 30 of Article XVI. Viewing Section 11 of
Article XI as a whole, we are of the opinion that it relates
to one class of city officers, i.e., those whose term of
office has been extended beyond two years, and that the portion
which relates to the automatic resignation of one who becomes
a candidate for another office has no application to city of-
ficers whose terms have not been extended beyond two years,
The very language of the paragraph relating to automatic
resignation lends itself Yogically to this application be-
cause it says "if any of such officers . e . shall a:-- . ..e
their candidacy, or shall in fact become a candidate , the
term such officers referring to city office-? whcze terms of
office have been extended beyond two years. Although this
conclusion treats city officials with terms of longer than
two years differently from those city officials with terms
of two years it is not a matter which we are empowered t9
correct. The power to amend and change the Constitution is
reposed solely in the people. Carpenter v. Sheppard, 135
Tex. 413, 145 S.W.Zd 562 (1940). The apparent anomaly is not
without parallel.. See Hall v. Baum, Tex,Sup., opinion de-
livered -February 16, 1970 holding that the prohibition of
Section 18 of Article III'of the Constitution of Texas prc-
hibited one class of senators from being eligible to the
office of governor but did not render ineligible the re-
mainder of the members of the senate or the members of the
house of representatives.
Accordingly, in answer to your first question, you
-2 i95-
Hon. Tom Curtis, page 5 (M-5t"l
are advised that the candidacy of the mayor of the City of
Amarillo for the office of county juire of Randall County
did not constitute an automatic resig.:.ltion
as mayor under
the provisions of Section 11 of Article XI of the Constitution
of Texas.
In view of our answer to your :‘iret question, no
answer is required to your second queetict.
We pass now to the question of whether, under the
. facts presented, the tenure in office of the mayor of the
City of Amarillo is affected by any other constitutional pro-
vision.
You have subsequently advised us by telephone that
the charter of the City of Amarillo provides that the mayor
shall receive the sum of $10 per week and all necessary ex-
penses in the.performance of his official duties. The office
of county judge entitles the holder thereof to a salary and
other specified expenses connected with such office.
Section 40 of Article XVI of the Constitution of
Texas provides in part as follows:
"No person shall hold or exercise, at the
same time, more than one civil office of emolu-
ment, except . . .I
In Willis v. Potts, 377 S.W.ld 622 (Tex,E.*- 1264).
it was held that a citv councilman of the Citv of t>rt Worth
who was entitled to 6520 per year plus nerassary expenses
incurred in the performance of official duties occupied a
"lucrative office under this State" within the meaning of
Section 19 of Article III of the Constitution of Texas. We
hold that the office of mayor of the City of Amarillo, which
carries with it the same salary and expenses as in the Potts
case, is a civil off ice of emolument within the meaningdf
Section 40 of Article XVI. The term emolument as used in this
provision means a pecuniary profit, gain or advantage; the
compensation authorized to be paid for the services of the
officer. Irwin v. State, 177 S.W.2d 970 (Tex.Crim.App. 1944) I
The term civil office is used and understood to distinguish
one from a military officer and coverts all officers whether
their duties are executive, legislative or judicial. State
165 Tenn. 381, 54 S.W.2d 941 (1932). The office of
the City of Amarillo fits both criteria.
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Hon. Tom Curtis, page 6(M-586
It must likewise be concedrd that the office of
county judge is a civil office of emo?*unentwithin the meaning
of Section 40 of Article XVI. As a cc..sequence,one person
may not at the same time hold the officts of mayor of the City
of Amarillo and county judge. In the event that the mayor of
the City of Amarillo is succeesful in hi- candidacy for the
office of county judge of Randall County and accepts and quali-
fies for the latter office, such acceptan&? and qualification
will constitute an automatic resignation oi the office of mayor.
The prohibition of Section 40 of Article XVI allows of no
other result. State v. Brinkerhoff, 66 Tex. 45, 17 S.W. 109
(1886); Ddem V* Sinton Ind. Sch. Diet., 234 S.W. 1090 ,(Tex. t
Sup. 1921); Pruitt v. Glen Rose Ind. Sch. Diet. No. 1, 126
Tex. 45, 84 S.W.Zd 1004 (1935); State v. Valentine, r98 S-W,
1006 (Tex.Civ.App. 1917, error ref.).
In answer to your third question, you are advised
that although mere candidacy of the mayor of the City of
Amarillo for the office of county judge does not affect his
tenure as mayor, because of the prohibition against dual office
holding contained in Section 40 of Article XVI of the Consti-
tution of Texas, if the mayor is elected and qualifies for the
office of county judge he will automatically resign as mayor
of the City of Amarillo.
No answer is required for your fourth question.
Section 11 of Article XI of the Conetitr;i.on
of Texas requiring the resignation of elective or
appointive city officers upon their candidacy for
any other office of profit or trust under this
State or the United States applies only to those
'city officers whose terms of office exceed two
years. Since the term of office of the mayor of
the City of Amarillo has not been extended be-
yond two years this provision of the Constitution
does not effectuate an automatic resignation as
mayor upon his candidacy for.county judge of
Randall County.
The office of mayor of the City of &narillo
and the office of county judge ue civil offices
of emolument within the meaning of Section 40 of
Article XVI of the Conutitution of Taxae. Since
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lion.Tom Curtis, page 7&l-586,
this provision prohibita one person from holding
more than one civil office of em lument, if the
mayor of the City of Amarillo ia elected and
qualifies as county judge of Randall County,
the qualification fot the latter office ahall
ipso facto comtitute a resignation of the of-
fice of mayor.
General of Texas
Prepared by W. 0. Shultz
AssitstantAttorney General
APPROVED:
OPINION COMMITTEE
Kern8 Taylor, Chairman
W. E. Allen, Acting Co-chairman
John Grace
Jack Dillard
Harold Kennedy
Pat Cain
John Reeve8
MEADE F. GRIFFIN
Staff Legal Amietant
ALPREDWALKER
Executive Assistant
NOLA WHITE
First Aanistant
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